Opinion
Civil Action No. 99A-12-002.
Submitted: May 5, 2000.
Decided: August 31, 2000.
Decision on appeal from decision of Industrial Accident Board.
Reversed and Remanded.
Henry C. Davis, Esquire, P.O. Box 744, Georgetown, DE 19947, attorney for Appellant.
Robert W. Ralston, Esquire, P.O. Box 1396, Wilmington, DE 19899, attorney for Appellee.
Pending before the Court is an appeal which Catherine Calloway ("Appellant") has filed from a decision of the Industrial Accident Board ("the Board") ruling Appellant no longer requires continuing chiropractic care. For the reasons discussed below, the Board's decision is reversed and remanded.
STATEMENT OF FACTS
Appellant injured her neck in a compensable industrial accident on November 1, 1991. while employed at E.I. DuPont de Nemours Company ("DuPont"). The Board granted Appellant's petition for compensation on November 28, 1994.
In 1998, Appellant petitioned the Board regarding the compensability of treatment for conditions related to the 1991 compensable work injury. The Board heard Appellant's petition on May 26, 1998. After the hearing, the parties stipulated to an order and submitted it to the Board. The Stipulation and Order after Hearing ("May, 1998 Stipulation and Order") provided:
PURSUANT TO agreement by the Parties before the Industrial Accident Board of the State of Delaware on 26 May 1998 in the above captioned case, Claimant and Employer hereby stipulate to the following and request that the Board sign a form of Order attached which formalizes the Parties [sic] consent to the Board making an award in accordance with the evidence presented without further hearing:
1). This case was presented to the Board on 26 May 1998.
2). Deposition evidence of Dr. Hobbs and Dr.Klienman were presented on behalf of the Claimant.
3). During the presentation of the Claimant's case and the argument offered by counsel, it became evident to both parties that the bulk of the matters before the Board were no longer contested.
4). A stipulation on the record was made as the basis for the attached form of order, indicating acceptance of compensability of the treatment for fibromyalgia and myofascitis as outlined by Dr. Hobbs, and that the parties agreed that any current or past psychological treatment was unrelated to the compensable injury in this matter.
5). Consequently the parties agreed to present an Order for the Board directing payment of medical costs and expenses related to the petition, providing for the right of the carrier to contest at future times specific expenses as either unrelated to the treatments agreed upon, or no longer necessary
WHEREFORE, as a consequence of the above described events and agreement by the parties before the Board, the Parties jointly request that the Board sign the attached form of order to have full force and effect as if it had been issued as a decision and Order of the Board and the appeal period for same had expired.
Both parties signed the stipulation and submitted it to the Board for approval.
Nearly a year later, on June 8, 1999, the Board executed the Order after Hearing ("June, 1999 Order after Hearing"). The June, 1999 Order after Hearing provided:
The reasons given for the Board signing the order more than a year after the parties agreed to it were that a hearing officer left and the document was misplaced.
Having heard the evidence and pursuant to an agreement by the Parties before the Industrial Accident Board of the State of Delaware on 26 May 1998 in the above captioned case, the Board Hereby Orders that:
1). Claimant's past treatment for fibromyalgia/myofascitis as outlined by Dr. Hobbs in her testimony is compensable and the Employer shall pay for same in full.
2). Claimant's ongoing treatment for fibromyalgia/myofascitis as outlined by Dr. Hobbs in her testimony is compensable and the Employer shall pay for same in full.
3). In the course of complying with paragraph two of this Order, should the Employer in good faith object to a particular expense as outside the scope of treatment described by Dr. Hobbs or that a particular expense is no longer necessary or is being charged at an unreasonable rate for like services, Employer shall provide written notice of denial to Claimant, through counsel, as to the specific charge or expense that Employer objects to, the grounds therefor, and shall pay any bills or reimbursements or portions thereof which are not subject to the specific objection.
4). Deposition evidence of Dr. Hobbs and Dr. Klienman were presented on behalf of the Claimant and shall be taxed as an expense of the Employer.
5). Employer shall pay Claimant's counsel one attorney fee in the maximum amount of $2,250.
6). Employer has no liability for past or current psychological treatment. Should Claimant seek payment for such expenses as to future treatment, Claimant shall notify the Employer, through counsel, as to the specific psychological treatment Claimant alleges is related to the above captioned case, and if denied, file a petition for additional compensation due, and this Order shall have no effect on the validity of such claims or defenses raised thereto, except to the extent that this Order recognizes ongoing treatment as described above.
7). Given that the parties are in agreement with the terms of this order and have agreed to waive any appeal period, this Order shall take effect upon execution by the Board. [Emphasis added.]
In the spring of 1999, DuPont notified Appellant's attorney that it objected to Appellant's chiropractic treatments and would no longer pay for those treatments. On April 30, 1999, in response to DuPont's notification, Appellant filed a Petition to Determine Additional Compensation Due ("the petition"). In the petition, Appellant sought an order directing DuPont to continue paying for chiropractic treatment for fibromyalgia syndrome pursuant to the parties' agreement which had been made an order of the Board. The Board held a hearing regarding Appellant's petition on November 15, 1999.
Debbie Hobbs, D.C., a board certified chiropractor, testified by deposition on behalf of Appellant. Attached as an exhibit to this deposition was Dr. Hobbs' deposition testimony taken for the May, 1998 hearing. Her testimony is summarized below.
Dr. Hobbs had been treating Appellant for fibromyalgia syndrome, which is the calcification or hardening of the myofascia. Because of this condition, Appellant suffers with soft tissue pain throughout her body; she suffers low back pain, headaches, shoulder and arm pain, pain above the knee and pain in her ribs. Dr. Hobbs started treating Appellant in April, 1997. Dr. Hobbs continued treating Appellant on a regular basis through August, 1997. Appellant did not receive treatment from Dr. Hobbs again until March, 1998; this resumed treatment continued until Appellant's last treatment on May 13, 1999. The treatment Dr. Hobbs and her staff provided Appellant consisted of chiropractic manipulative therapy, myofascial release therapy and acupuncture.
Myofascia is a saran wrap-like layer of very fibrous, very tough tissue which surrounds the muscle. It is wrapped around every cell of the muscle tissue and then it is wrapped around the whole muscle; it continues on into the tendons and ligaments and inserts into the bone.
Dr. Hobbs further testified as follows. She has not yet released Appellant from her care. Dr. Hobbs believes the reason Appellant has not been to treatment is Appellant's concern over the unpaid bills. As of the date of her second deposition, Dr. Hobbs had not received payment from DuPont's carrier for four of Appellant's treatments, which occurred on April 6 and 15, 1999, and May 4 and 13, 1999.
Dr. Hobbs also testified to the following. Fibrornyalgia syndrome is an incurable and unpredictable condition, but manageable with the level of care Dr. Hobbs has prescribed. With treatment, there can be a fairly significant remission. In Appellant's case, there was a 50% improvement during the initial course of her treatment. Based on the patient's history and the lapse of treatment, Appellant's condition could have deteriorated. The last time Appellant returned following an interruption of care, her symptoms and condition were worse. For Appellant to regain the 50% improvement she had, it would take approximately three visits a week for maybe two to four weeks, then decreased care maybe twice a week for two to four weeks, and then one visit a week for two to four weeks. The treatment eventually would taper off to once a month.
When questioned about Appellant obtaining a hydrotherapy type of treatment at a facility named Accucare, Dr. Hobbs could not remember if she recommended the treatment, but stated she would support Appellant going to a facility such as that. Dr. Hobbs also responded that literature suggests that aquatherapy is the best kind of exercise for fibromyalgia patients because it is non-weight bearing and, thus, not stressful on the patient's joints. Dr. Hobbs explained that aquatherapy is completely different from the type of therapy she was using to treat Appellant. She went on to state that aquatherapy, which is an aerobic kind of exercise in a pool that increases oxygen flow to the tissues, is designed to help the patient regain mobility and decrease the pain by way of a different mechanism than Dr. Hobbs' methods of treatment.
Wai Wor Phoon, M.D., board-certified in physical medicine and rehabilitation, testified by deposition on behalf of DuPont. Dr. Phoon examined Appellant and reviewed her medical records on April 29, 1999. After examining Appellant and reviewing her records, Dr. Phoon diagnosed Appellant with chronic pain syndrome with the possibility of having fibromyalgia. Dr. Phoon stated that he certainly would not disagree with Dr. Hobbs' diagnosis of fibromyalgia. Dr. Phoon also remarked that Appellant's chronic pain syndrome was related to the November 1, 1991 industrial incident.
The diagnosis of chronic pain syndrome is different than the diagnosis of fibromyalgia.
Since chiropractic care provides Appellant with only temporary relief, Dr. Phoon testified he did not believe such further treatment is necessary. Dr. Phoon stated that with Appellant's condition, chiropractic care might be appropriate for eight to twelve weeks and if it did not help, then the treatment should be stopped. Dr. Phoon also agreed that Appellant's condition has not substantially changed since two years ago. Since Appellant has chronic pain syndrome, the pain is going to be permanent. Any chronic situation like Appellant's, where the pain continues without relief, means that Appellant's current treatment is ineffective.
Dr. Phoon testified that swim therapy might be appropriate for Appellant. He agreed that Appellant might be assisted by swimming as an exercise type of program because swimming exercises would help Appellant to mobilize, strengthen and tone up her tissues. Dr. Phoon recommends this regimen under initial supervision by a physical therapist.
Appellant testified to the following. She resumed seeing Dr. Hobbs after the May, 1998 hearing and then stopped treatment in May, 1999 because the insurance carrier would not pay Dr. Hobbs' bills. Appellant contacted Dr. Hobbs to express this financial concern.
While she was receiving treatment from Dr. Hobbs, she had a headache about once every two months. After stopping these treatments, she had headaches more frequently. When experiencing headaches, she could not perform household functions, such as vacuuming, or do anything that required any use of motion. Appellant now is taking four different kinds of medication that were unnecessary when under Dr. Hobbs' care. Also, Appellant now is seeing her family doctor and a rheumatologist.
Appellant testified that chiropractic care and massage alleviate her pain. She finds it very difficult to take medicine for prolonged periods because of the side effects. Dr. Hobbs' treatment was beneficial. Since DuPont stopped paying for the treatments, she has relapsed.
In its decision of November 23, 1999, the Board made the following findings and conclusions:
Claimant seeks an order directing DuPont to continue paying for treatment rendered by Dr. Hobbs. She argues that Dr. Hobbs' treatment is covered by the May 1998 agreement and stipulated Order, by which DuPont agreed to pay for ongoing treatment from Dr. Hobbs. The stipulated Order, however, states that if DuPont in good faith objects to a particular expense as no longer necessary, it can notify Claimant and stop payment. (Paragraph No. 3 of Stipulated Order.) Based on Dr. Phoon's conclusions, DuPont argues that the chiropractic care is no longer necessary. Therefore, Claimant has the burden of proving that ongoing chiropractic treatment is necessary to treat her fibromyalgia.
Dr. Hobbs, Claimant's chiropractor, asserted that her treatment was helpful. In addition, Claimant attested that her headaches and overall level of pain decreased when she was under Dr. Hobbs' care. However, Dr. Phoon, who is a medical doctor specializing in physical medicine and rehabilitation, testified that chiropractic care was not necessary. Instead he recommended a program of swimming exercises, which would require one session with a physical therapist for instructional purposes, followed by Claimant's performance of the exercises on her own. Dr. Hobbs agreed that swimming is the best exercise for fibromyalgia patients, as it can increase mobility and decrease pain. For these reasons, the Board accepts Dr. Phoon's testimony and finds that a swimming program likely will yield the same benefits as the chiropractic treatment.
The Board also finds, however, that it is reasonable to allow some additional period of chiropractic care to help wean Claimant off of the treatment while she gets used to the swimming program. Therefore, the Board will authorize three additional months of chiropractic treatment, at one session of chiropractic manipulation per month and one session of the myofascial release per month.
Appellant appealed therefrom. Appellant argues that the Board erred as a matter of law in failing to enforce the prior Order of the Board as it was res judicata. Appellant also argues that the Board improperly placed the burden of proof on Appellant. Finally, Appellant asserts that the Board gave defenses and presumptions to DuPont which the stipulated order had foreclosed.
DuPont, in response, maintains that substantial evidence supports the Board's conclusion that Appellant's chiropractic treatment is no longer reasonable or necessary, and the decision is legally correct. Moreover, DuPont argues that it may properly contest treatment under the provisions of the June, 1999 Order after Hearing regarding good faith objections to unnecessary expenses.
STANDARD OF REVIEW
On appeal, the Court must determine whether the Board's decision is supported by substantial evidence and is free from legal error. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965); Devine v. Advanced Power Control, Inc., Del. Super., 663 A.2d 1205, 1209 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilminaton Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). The Superior Court, sitting as an appellate court, does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142 (d). In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. General Motors Corp. v. Guy, Del. Super., C.A. NO. 90A-JL-5, Gebelein, J. (August 16, 1991). As to errors of law, the Court's review is plenary. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989)
DISCUSSION
Appellant argues that the Board failed to give the May, 1998 Order its proper res judicata effect and that the May, 1998 Order should have a collateral estoppel effect on the subsequent proceedings of the Board.
Absent a situation where the employee is seeking to increase or renew benefits or the employer is seeking to reduce or terminate benefits, the Board may not revisit final matters resolved by an agreement which the Board has approved. Elliott v. Salisbury Coca-Cola, Del. Super., C. A. No. 95A-06-007, Lee, J. (May 9, 1996) (Mem. Op.). The Court, in Whalen v. State, Del Super., C.A. No. 93A-11-016, Goldstein, J. (April 28, 1994) (Mem. Op.) at 4, set forth the following quote from 82 Am. Jur.2d, Worker's Compensation § 522 (1992)
[a] settlement of a compensation claim which has been approved as required by the workers' compensation statute operates as an adjudication of the facts agreed upon in the settlement, has the same force and effect as an award made after a full hearing, and is res judicata as to the employer's obligation to pay compensation.
However, Appellant's res judicata argument ignores paragraph 3 of the June, 1999 Order after Hearing which allows Employer to "in good faith object to a particular expense as outside the scope of treatment described by Dr. Hobbs or that a particular expense is no longer necessary or is being charged at an unreasonable rate for like services. . . ." Thus, pursuant to the parties' agreement, DuPont may seek to terminate Appellant's chiropractic care as no longer necessary. Consequently, the doctrines of res judicata or collateral estoppel do not prevent DuPont from seeking a termination of chiropractic care.
The parties agreed to the chiropractic treatment in the May, 1998 Stipulation and Order, and it was a benefit which the Board ordered pursuant to the June, 1999 Order after Hearing. Although the agreement provided that DuPont was to notify Appellant in writing of the denial, and grounds therefor, of a specific charge or expense to which Employer objected, it is silent as to what steps either Appellant or DuPont was to take after the notification. This omission has allowed the issue of which party had what burden of proof to develop.
The Board's November 23, 1999 decision regarding the petition placed on Appellant the burden of proving ongoing chiropractic treatment was necessary. As Appellant stated, "[t]he Board placed the burden of proof on the Claimant merely because the Employer challenged the need for payment." (App. Op. Br. at 16). That Appellant filed the petition is not dispositive of the burden of proof issue. She had to file the petition in order to force DuPont to continue paying for her chiropractic care.
I resolve the issue by examining and employing the good faith condition. As explained in DuPont v. Pressman, Del. Supr., 679 A.2d 436, 443 (1996)
[T]he Uniform Commercial Code ("UCC") is appropriate to consider by analogy. The UCC defines good faith as "honesty in fact in the conduct or transaction concerned," 6 Del. C. § 1-201 (19), and "honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade," 6 Del. C. § 2-103 (1)(b)
"Reasonable commercial standards" in the area of worker's compensation place on the employer the burden of proof when trying to terminate an employee's benefits. Strawbridge Clothier v. Campbell, Del. Supr., 492 A.2d 853, 854 (1985) ("It is now well settled that an employer or an insurer seeking to reopen an award of workmen's compensation or otherwise to secure a diminution or discontinuance of benefits has the burden of demonstrating the facts relied upon. . . . .", quoting Santiago v. Food Crafts, Inc., Del. Super., 286 A.2d 762 (1971), aff'd, Del. Supr., 300 A.2d 2 (1972)). See Avon Products. Inc. v Lamparski, Del. Supr., 293 A.2d 559 (1972) (a party seeking to modify an award by subsequent review bears the burden of establishing by preponderance of the evidence that the award should be modified); C.F. Braun and Company v. Mason, Del. Supr., 168 A.2d 105 (1961) (the burden placed on a party seeking to modify an award by subsequent review is a preponderance of competent evidence that the former award should be modified). Thus, I imply into the agreement the condition that Employer must file a petition to terminate payment of certain benefits once it objects to those benefits and Appellant does not agree to the termination of such benefits. See DuPont v. Pressman, 679 A.2d. Consequently, I conclude DuPont has the burden of proof on whether the chiropractic care no longer was necessary.
The Board erred when it placed the burden on Appellant to prove she needed the chiropractic treatment. DuPont has the burden of proving the chiropractic care for Appellant is no longer necessary since it wishes to terminate those benefits.
CONCLUSION
For the foregoing reasons, the Court concludes that the Board erred when it placed the burden on Appellant to prove she needed chiropractic care. Consequently, the Board's decision is reversed and the case is remanded to the Board for it to resolve the issue of chiropractic care by imposing the burden of proof on DuPont.